Unpacking the Proposed Constitutional Amendments: Promotion and Tenure of Judges Clauses

Source: 11 February 2020Democracy, Human Rights, Legislation

Two of the proposed amendments to the Constitution concern sitting judges in the higher courts.

When the 2013 Constitution came into effect, all judges were to be appointed after a thorough and public process involving: advertising the position; inviting the President and members of the public to nominate candidates; conducting public interviews of candidates; and preparing a list of three qualified nominees to be submitted to the President from which the President makes his/her selection.

The first Constitution Amendment Act of 2017 nullified the consultation process for the appointment of the Chief Justice, Deputy Chief Justice or Judge President of the High Court, and the Judicial Service Commission (JSC), who are appointed by the President on the recommendation of the JSC without public interview.

The latest proposed amendments would mean that the changes effected in 2017 would extend to judges promoted to the Supreme and Constitutional Courts – essentially reverting back to the appointment process pre-2013.

In addition to changes to the appointment of judges, the Constitution Amendment Bill will also affect the ways in which a judge retires. As it stands, all judges must retire from office at midnight on their 70th birthday. The amendment would allow Supreme Court and Constitutional Court judges to remain in office on an annual rolling contract determined by the President, for up to 5 years beyond 70. The amendment would not, however, apply to any judges already in office – so all currently sitting judges must still retire at 70.

Veritas points out that these proposed amendments, in addition to amendments already passed into law, threaten both the independence and the transparency of the judicial system.

Alex Magaisa writes: “The proposed amendment takes Zimbabwe back to the pre-2013 constitutional dispensation where the President had a disproportionate amount of control of the judicial appointment process. This reversal is counter-productive and reactionary, conferring as it does too much power into the hands of the President”.

Source: Kubatana